This year, in Apprendi v. New Jersey, ___ U.S. ___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the United States Supreme Court issued a decision that penetrates the constitutional foundation of this State's extended sentencing procedures. In this appeal from a summary dismissal of her post-conviction petition, Dionna Beachem (Beachem) challenges the constitutionality of the extended sentence of 90 years she received for first degree murder. The most serious question before us is whether Apprendi reaches beyond a direct appeal to an appeal of the dismissal of a timely-filed post-conviction petition. We hold that it does.

FACTS

On December 5, 1994, Annie Jones (Jones), a 77 year-old woman living alone on Chicago's south side, was fatally beaten in her apartment. That day, Beachem was arrested and subsequently released on bond for attempting to use Jones' newly-issued credit card at a suburban mall jewelry store. Two days later, Jones' landlord discovered her body.

Beachem was charged with and convicted of residential burglary, home invasion, robbery, and first degree murder. Though the trial court found her eligible for the death penalty, Beachem was sentenced to an extended term of 90 years imprisonment for the murder conviction, 30 years for the home invasion conviction, 15 years for the residential burglary conviction, and six years for the robbery conviction, all sentences running concurrently.

Beachem appealed her convictions and sentences. We affirmed. People v. Beachem, No. 1-96-3260 (1998)(unpublished order under Supreme Court Rule 23).

First, Beachem contends the trial court erred in summarily dismissing the allegation in her post-conviction petition that her trial attorney failed to advise her of a plea-bargain offer. Beachem's petition said: "After my sentencing, 8-26-96 my attorney told my aunt *** and my mother *** that the state offered me 20 years and I turned it down. This offer was never brought to my attention. If the state told me that they were offering me 20 years, it was my attorney's job to discuss that issue with me."

The trial judge found Beachem failed to provide the gist of a constitutional claim, which is all that is required at the first stage of a post-conviction proceeding. See People v. Frieberg, 305 Ill. App. 3d 840, 847, 713 N.E.2d 210 (1999). The petition should be dismissed if it is frivolous and patently without merit. People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d 102 (1996).

Here, Beachem's petition alleged her attorney should have discussed any offer made by the prosecution directly to her. Assuming Beachem is contending her attorney failed to advise her, this allegation lacks any record support. Beachem relies on a sworn February 5, 1999, handwritten statement from her mother. But this statement was addressed "To the Appellate Court" nearly a month after the trial court dismissed Beachem's petition. The trial judge did not have it.

In a supplemental brief, Beachem raises another, more substantial issue never addressed in the trial court. Beachem contends her extended term sentence was unconstitutional.

In Beachem's first appeal, we held the trial court did not abuse its discretion in imposing a 90-year extended term sentence. The court found two statutory aggravating factors, "that the crime was exceptionally brutal and heinous, indicative of wanton cruelty, and based on the fact that the victim was over 60 years of age." These findings triggered the extended term sentence provision of the Unified Code of Corrections. See 730 ILCS 5/5-8-2(a)(1) (West 1996).

After Jones' direct appeal, and after the denial of her post-conviction petition, the United States Supreme Court decided Apprendi.

Justice Stevens' opinion for a 5-4 majority of the Court framed the issue:

"The question presented is whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense *** be made by a jury on the basis of proof beyond a reasonable doubt." Apprendi, ___ U.S. at ___, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351.

The Court then said:

"Our answer to that question was foreshadowed by our opinion in Jones v. United States, 526 U.S. 227[, 143 L. Ed. 2d 311, 119 S. Ct. 1215] (1999), construing a federal statute. We there noted that 'under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.' [Citation.] The Fourteenth Amendment ...

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